Agency-Liability AlocaZ agent acting for foreign principal-Whether peraoMu"
liq,ble for p,incipafs default-Failure of agent to qualify signature

Agency-T~ of contract-Whether liability for entire contract foUows from

                   spet;iaZ undertakings by the agent under the contract                                 

Reception-Agency-Liability of commercial agents-Egyptian and English law,

·Court: Fleming J.

The plaintiffs put an order with the second defendants for a 100
cases of coffee cups to be supplied by the first defendants. The order
stated that it was "By Messrs Gambour Bros. of Khartoum to Mr. A.
Revelli of Lavene, Italy." It also stated that the cups ;were to be supplied
as per sealed sample at 420 lire a case.' The order was signed by the
second defendants in their own name and without any reference to the
fact that they were signing as agents. Reference was however made in
the order to an attached contract of the same date. This contract was
again signed by the second defendants without any mention of the fact
that they were signing as agents. The contract itself, however, started
by stating that it was a contract "Between Messrs. Ohanian & Aiello
in their ,capacity as agents ~or Mr. A. Revelli of Laveno, Italy, and Messrs
Cambour Bros."

When the first consignment of goods arrived the plaintiHs discovered
that the goods did not correspond with the sample. Thereupon the
plaintiffs brought the present action. They argued that the second de-
fendants were personally liable under the contract because they signed it
in their own name without any qualification and because of the presence
of two clauses in the contract for the performance of which they were
personally liable. Alternatively; they argued that the second defendants,
being the, home agents of a foreign principal, they must be held personally
liable for a breach of contract committed by him.

Held»

( i) There was a breach of contract as the goods did not
correspond with the sample.

( ii) The second defendants were all the tune acting in their capacity
as agents for the first defendants. An agent does not become personally
liable merely because he signed a contract without qualifying his signature
if it appears from the, body of the contract that he is acting as agent.

( iii) The presence of one or more terms in a contract for the per-
formance ot which the agent is personally liable, does not, make him
liable for the performance of the whole contract if it appears from all
the terms taken together that this was not the intention.

( iv) When an agent is acting for a foreign principal the presumption
is that the agent is persorially liable unless it is proved that" the intention
was to make the principal liable under the contract, and that in the
present. case such intention was proved.

(v) The liability was solely that of the first defendants and therefore,
the plaintiH is entitled to recover damages from them.

Khatchekian v. Mohammed Orner Bagarea AC-APP-12-1920 distinguished.
Gadd v. Houghton (1876) L.R. 1 Ex. D. 357.

Glover v. Langford (1892) 8 T. L.R. 628.

Green v. Kopke (1856) -18. C.B. 549, 139 Eng. Rep. 1484, discussed
and followed.

Egyptian Native Commercial Code, ss.' 82 and 83.

Action

Advocate: Mr., Tryfon Francoudi. ..... for plaintiffs.

May 11, 1921. M. Fleming J.: In this action there bas been a
breach of contract and liability for damages lies somewhere, and as
one of the defendants has appeared in answer to the summons and the
other has not it will be convenient to determine the incidence of the
liability before considering its extent.

The contract broken was a contract for sale by sample and the
manner in which it was constituted was as follows. An order dated
November 30, 1920, was made out which bore to be "By Mr. Gam-
bour Bros, Khartoum" and "To Mr. Alessandro Revelli, of Laveno"
for the supply of 100 cases of coffee cups as per sealed sample at
420 lire^' a case. Laveno is in Italy. .The order was signed by
defendants Ohanian and Aiello, and by them only, and on the face of
it, it was an order transmitted by them from Gambour to Revelli.
The order makes reference to, and must be read in conjunction with
an attached contract of the same date and in the following terms:

"Between Messrs. Ohanian & Aiello in their capacity as
Agents for Mr. Alessandro Revelli of Laveno (Italy) and Messrs.
Gambour Bros from the other part, it has been agreed as follows
with reference to the order dated 30th 'November 1919, No. 1853,
for ONE HUNDRED CASES EACH CASE 1500 CUPS "FIN-
GAN GABANA" as prices stated therein, the followings:

1. The price therein stated is LIRE IT ALIANE and payment
   should so be effected, at whatever rate ruling at the time of

                          payment.                                                                  

1. The order is given on condition that as 'soon as it reaches the,
   Manufacturer, same to WIRE APPROVAL, before which the
   order, as far as prices are concerned is nil, and may be
   treated as cancelled, if the Manufacturer upon receipt will
   ask for modified prices.
2. For the payment, of the order, the following has been agreed
   ---On receipt of the approval of the Manufacturer, Messrs ..
   Gambour Bros. will soon arrange by wire for the quarter of'
   the total of the order being advanced to the Manufacturer

~ The exchange rate for 420 Italian lire at the time of the contract was
PT. 902.,

through their Khartoum Agents viz. Messrs. Ohanian &
Aiello. The quarter of the sum is Lire Italiane 10,500. Ten
thousand five hundred for the goods, and plus the quarter <:>(
the packing expenses, freight etc., whatever may be said to
be by the Manufacturer. The second quarter viz Lire 10,500
will be paid in the same way upon receipt of advise from
the Manufacturer that the goods is ready, and the remainder
half will be paid cash on delivery here at Khartoum or in
Italy against the shipping documents as may desire the Manu-
facturer.

1. It is understood that the goods is priced for goods franco
   FABRIQUE, packing extra' at cost.

1. The shipments may be done in one lot, or separate lots say of
   25 cases each, as the goods may be ready.

1. Messrs. Gambour Bros. have no right to cancel this order
   until receipt of information from the Manufacturer, and in
   case they cancel the order for no reason, they will have to
   pay Messrs. Ohanian & Aiello a commission of 2112% (two
   and half per cent).
2. The quality of the goods is as per sample handed over to
   Messrs. Gambour and signed by G. O. Ohanian & V. Aiello,
   and as requested by Messrs Gambour Bros., we will ask the
   Manufacturer to arrange that the decoration in red as well as
   the gold line be clear and clean, and that the goods be as
   white as possible and light.
3. Messrs. Ohanian & Aiello undertake not to bring any more
   such kind of .goods, until the whole of the 100 cases are
   delivered to them at Khartoum, after which they will be free.
4. Messrs. Gambour Bros. agree to pay to Messrs. Ohanian &
   Aiello a commission of 5ro (five per cent) on the total cost
   of the goods.

Made at Khartoum this 30th day of November in triplicate and
for one object, and both parties signing they agree to accept these
conditions and maintain them.

This contract is signed by Ohanian and Aiello and, by Gambour
Bros. Ohanian and Aiello do not sign as agents, but the contract
.begins with the words "Between Messrs. Ohanian and Aiello in their
capacity as.-agents for Mr. Alessandro Revelli of Laveno (Italy)."
It is impessible to mistake the meaning of these words, and in view

of their presence the fact that Ohanian and Aiello signed iri their own
name is of no importance. A similar situation arose in the case of
Good v. Houghton (1876), L.R. 1, Ex. D. 357 where some brokers
in England signed a 'sold note' in th~ir own name . wlithout any addi-
tion, but it was stated in the body of the note that they sold "on
account of' a named firm in Spain. The Court of Appeal held that
the words "on account of' shewed' an intention to make the foreign
principals, and not the brokers;' liable,'. and that the brokers were
not liable upon the contract, Mellish L.J. said in the course of his

        judgment:                                                                                    

"I can see no difference. between a man writing 'I, A.B.,
as agent for C.D.,. have sold to you,; and signing 'A.B.' and his
writing 'I have -sold to you' and signing 'A. B. for C. D. the
seller'. When the signature comes at the end you apply it to

                  everything which occurs throughout the contract."                     

In the present case, however, it is said that there are certain
clauses in the contract which indicate' that in spite of the unambiguous
words I have quoted "Ohanian and Aiello were in fact contracting
as principals." Counsel referred in particular to_ clauses 8 and 9.
These clauses certainly had no relation to Revelli, but the fact that
the agent chooses to introduce into the contract certain stipulations
which affect him and not his principal cannot prevent the contract'
from remaining what in the. most explicit words it purports to be,
and what in its main provisions and terms it is, viz., a contract between
Gambour and Revelli. It was Revelli who had to approve the order
and it was to Revelli through his "Khartoum agents, viz., .Messrs,
Ohanian and Aiello" that the price had to be paid. . It was not
contended that any breach of the two exotic clauses above referred to,
clauses 8 and 9, has taken place, nor has it been shewn that Ohanian
and Aiello have failed to discharge the personal ob~gation undertaken
by them the second sentence of clause 7, as they say in their, covering
letter to Revelli of 30 November, "We beg you ldndly to do your
best that the goods may be as stated by us, white, clean, and the red .
and 'gold--liries clean and clear." It was contended thatthey did not
make .. d~ar to Revelli what the sealed sample was, . The sealed sample
rem6ined by consent with Gambour, and apart from other .evidenee
jhe fact that Revelli accepted the order "as per· sealed sample:' Is

.: strong presumptive evidence that he knew what it was.

The English law as to the liability of an agent for ~ foreign

principal was until the last 40 or 50 years somewhat unsettled, but
now there seems to be no doubt as to its governing principle, and
that I can best indicate by quoting from the judgment of Mr. Justice
Charles in Glover v. Langford (1892) 8 T. L.R. 628. He says with
reference to other' decisions:

"It appears that in point of law there is no distinction as
to the liability of an agent acting on behalf of English or a foreign
principal; it is always a. question of fact, and no doubt the circum-
stance that an Englishman is, acting for a foreigner is a circum-
stance of great weight."

His Lordship then quotes the following sentence from the
judgment in Green v. Kopke (1856), 18 C.B. 549, 139 Eng. Rep.
1484:

"In any case it is a matter of intention to be gathered from
the contract itself and the surrounding circumstances."

The conclusion I. draw from the above and from such other
authority as I have been able to discover is that where agent and
principal are in the same country the agent is not liable unless he has
expressly incurred a liability, but that when the principal is foreign the
intention to make him (the principal) liable must be proved. In the
present case I hold it has been proved. The terms of the contract are
for the reasons I have stated above sufficient in themselves to prove
it, and there is nothing in the surrounding circumstances of sufficient
weight to alter the conclusion I feel bound to draw from the contract
itself.

Reference was made to Egyptian law on the subject of com-
mission agents and in particular to sections 82 1 and 83 2 of the
Egyptian Native Commercial Code 1883. Section 82 but for section
83 would deprive the parties of any right of action except against the

1 Section 82 reads:

"[A commission-agent) is personally responsible to his principal and
to the party with whom he deals, and he has a right of recourse against
each of the parties respectively, without their having personally any right
of action against each other,"

2 Section 83 reads:

"Nevertheless, if a commission-agent contracts in the name of his
principal and with his authority to that effect, the parties 'shall have a right
of action against each other, and the rights and duties of the commission-
agent shall be governed exclusively by the rules of mandate,"agent, but section 83 provides that if the agent contracts in the name

. of the principal and with his authority the parties shall have a right
of action against each other and the rights and duties of the agent
shall be governed exclusively by the laws of- mandate. In the present
case the agent did contract in the name of his principal and I hold it
proved by the correspondence that he contracted with his authority.
The principal, having in his hands the order and the contract in which
his rights and liabilities are set out, sent to his agents a telegram say-
ing, "Ordina Gambour Sta bene,"-the order of Gambour holds good,
and in his letter of December 19, 1919, he expressly accepts the order
and its conditions.

Whether, therefore, we apply the principles of English or Egyptian
law I think we must reach the conclusion that in this case it is the
principal Revelli and not his agents Ohanian and Aiello on whom
the liability lies. Reference was made by Mr. Francoudi to the de-
cision of the Sudan Court of Appeal in Katchekian v. Mohammed
Omer Bazarea AC-APP-12-1920.1 The file of" that case being presum-
ably at Suakin I have not seen the actual terms of the contract, but
from the papers in the Court of Appeal file I gather that the two cases
are not analogous. In particular it appears from Judge Peacock's
judgment that the order was not submitted by the agent to the foreign
principal for acceptance, and there was nothing to show that the
agent had authority to bind his foreign principal. In both of these
important respects the present case is on a different footing.

It only remains to consider the amount of damages which plaintiff
is entitled to receive from the defendant Revelli. A& the action so
far as he was concerned was undefended, the co~rt has no direct
knowledge of his point of view, but he had the advantage of the
arguments and evidence the defendants Ohanian and Aiello who had
to meet the possibility of the court being against them on the question
of agency. It is admitted by Aiello and it is proved that the goods
supplied were according to sample and the main point for decision
is . the difference between the contract price and the price at which
the same or equally valuable goods were obtainable at or about the
date of delivery. The plaintiff claims iE.14 a case. I think on

. the evidence, which was mainly that of plaintiffs witnesses, that iE.l1
is sufficient. On 100 cases the difference allowed is therefore iE.l100.

This case is reported in this volume.